2000, whereas Little did not present an alternate version of the events of the July 1
meeting until the predisciplinary conference in October 2000. Def.’s Exh. D-2, at 17-
19, 21, 26-27, 30-31; Def.’s Exh. B-2, at 6. The IAD investigators conducted twelve
interviews of nine employees as well as reviewing documentary evidence of the events
of the night of July 1. Def.’s Exh. D-2. It was entirely reasonable for the Board and the
Department to conclude that the investigation was thoroughly performed and to rely on
the factual conclusions of the investigators. The fact that Little disagrees with the
findings of the IAD investigation and the actions taken pursuant to it does not create a
material issue of fact as to the genuineness of his employer’s reliance upon it. Most of
his presentation acts as though we are the personnel department of the IDOR, weighing
evidence and finding fact in the first instance. It goes without saying that it is not our
place to reinvestigate or retry the facts reported by the IAD. See, e.g., Stewart v.
Henderson, 207 F.3d 374, 378 (7th Cir. 2000). Although Little of course offered up his
own version of what transpired, the Department was not obligated to accept Little’s
account; their failure to do so in the face of a thorough, factually corroborated report
does not create a material issue of fact. Our job is to determine not whether the
employer was justified or correct in relying on the report but whether the Department
reasonably and honestly relied on the findings of the IAD investigators. We conclude

that they did just that. Accordingly, Little has not shouldered the burden of proving

-13-


Upon completing the investigation, the IAD officers submitted their report to
Sergio Acosta, the Board’s Administrator, and Deputy Administrator Thomas Swoik,
who both concluded that the investigation was comprehensive and that the
recommendations it set out were supported by the facts the report contained. Several
members of the Department’s management, including Administrator Robert Tapscott,
Labor Relations Manager Carol Morgan, Staff Attorney James Day, also reviewed the
report and made similar conclusions. Morgan, Tapscott, Swoik, Acosta, and Day then
brought the IAD report and their own conclusions based on its contents to the attention
of Glen Bower, the Department’s Director. Bower also decided that the conduct the
report attributed to Little was unacceptable and violated the Department’s rules. Acosta
recommended that Little be severely sanctioned, and Bower instructed Tapscott to
initiate the disciplinary process. Tapscott then had Morgan draw up a statement of
charges, which formed the basis of the charges presented to Little at a predisciplinary
conference in October 2000. Another Deputy Administrator for the Board, Joe
Haughey, and Deputy Administrator for the Investigation Division, James Wagner,
presided over the conference and prepared a memorandum summarizing Little’s
response to the written charges and the IAD report. The memorandum stated that Little
had advanced no grounds that would lead Haughey or Wagner to modify the proposed

disciplinary action, which would consist of more than an oral reprimand.

-4-


Little offers eight examples of employees purportedly afforded more favorable
treatment: Darylann Baron, Scott Deubel, Frank Ucho, James Oliver, Sam Rossi, Mike
Barry, John Novak, and Steve Hirsch. To be similarly situated to Little, these
employees must engage in similar conduct without the kind of distinguishing
circumstances that would explain the different treatment, be subject to the same
standards, and have the same supervisors. Radue v. Kimberly-Clark Corp., 219 F.3d
612, 617-18 (7th Cir. 2000). Considering only the conduct involved in each of these
disciplinary cases, it is clear that the employees to whom Little points are not similarly
situated. The situations of Baron, Rossi, and Ucho are immediately distinguishable;
they were punished only for use of improper language. Although use of profanity and
other offensive language was part of the charges brought against Little, that was not the
sum total of the misconduct cited in the report or the subsequent charges. There is
certainly nothing insidious about doling out lesser punishment for lower levels of
misdeeds. See Spath v. Hayes Wheels Int’]-Indiana, Inc., 211 F.3d 392, 397 (7th Cir.
2000); Thompson v. John J. Madden Mental Health Center, 2000 WL 1780348, at *4
(N.D. Ill. Dec. 4, 2000). As for the claimed congruity of Novak, Hirsch, and Barry,
those three employees were accused of misusing state-owned vehicles. That type of
wrongdoing is simply not analogous enough to Little’s situation to offer any kind of

meaningful comparison of consequences. Hiatt v. Rockwell Int’! Corp., 26 F.3d 761,

-9-


the record as a whole and draws all reasonable inferences in the light most favorable to

the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th

Cir. 2000). A genuine issue of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Insolia v. Philip

Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000); Anderson v. Liberty Lobby, Inc., 477

US. 242, 248 (1986). It is with these principles in mind that we address the instant
motion.
DISCUSSION

Little’s complaint consists of four counts, two arising from Title VII, 42 U.S.C.
§§ 2000e-2, 2000e-3, and two finding their basis in 42 U.S.C. § 1983. We address the
claims of retaliation and race discrimination in violation of Title VII first.
Retaliation and Race Discrimination Claims

It is apparent from the submissions in this case that the parties have had a lengthy
and less than amicable history. Consequently, each side brings up events long past in
support of their respective positions. In examining Little’s Title VII claims, however,
we are limited to considering events that occurred within 300 days before Little filed
his EEOC charges. In other words, to make his case against the Board and the
Department, Little can look no further back than October 3, 1999, and October 14,

1999, respectively.


After some additional investigation, Acosta, Morgan, Tapscott, and Bower
concluded that the appropriate course of action was to discharge Little. In December,
Little was discharged but was once again reinstated pursuant to an arbitrator’s decision
in November 2001.

Little received his right-to-sue letter for his EEOC charges in September 2000
and filed this action in December, just before his discharge was finalized. The four-
count complaint asserts claims based on Title VII and 42 U.S.C. § 1983. The
Defendants now collectively move for summary judgment off all claims.

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most
favorable to the nonmoving party, reveals that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). The moving party bears the initial burden of showing that no genuine
issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548
(1986). The burden then shifts to the nonmoving party to show through specific
evidence that a triable issue of fact remains on issues on which the nonmovant bears the
burden of proof at trial. Id. The nonmovant may not rest upon mere allegations in the
pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings

and support its contentions with proper documentary evidence. Id. The court considers

-5-


the burden shifts to the Department and the Board to produce a legitimate
nondiscriminatory or nonretaliatory reason for taking the actions they did. Id. The
burden then shifts back to Little to prove that their reasons are in fact a pretext for
discrimination or retaliation. Contreras v. Suncast Corp., 237 F.3d 756, 760 (7th Cir.
2001). There is much overlap between the analyses required for Little’s two claims,
and indeed the Board and the Department present the same arguments of insufficiency
for both claims. Namely, they contend as to both claims that has Little has not shown
that he was meeting legitimate expectations, that any similarly situated employees who
received more favorable treatment, or that the reasons given for their employment
decisions were pretextual.

A similarly situated employee is one who is directly comparable to Little in all

material respects. Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir.

2002). There must be no meaningful distinctions between comparables if plaintiff is to
show that other, better-treated employees were similarly situated. See Freeman v.
Madison Metropolitan Sch. Dist., 231 F.3d 374, 383 (7th Cir. 2000). It is not enough
for Little to merely throw up examples of white employees who received lesser
punishments in the abstract; he must also show that the differing disciplinary actions

were in response to like offenses.


Minute Order Form (06/97)

United States District Court, Northern District of [inois

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 00 C 7836 DATE 5/14/2002
CASE Greg Little vs. Illinois Dept of Revenue et al
TITLE
{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state bricfly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Oo Filed motion of { use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) o Answer brief to motion due Reply to answer brief due.
(4) oO Ruling/Hearing on set for at
(5) O Status hearing[held/continued to} [set for/re-set for] on set for at
(6) gq Pretrial conference[held/continued to} [set for/re-set for] on set for at .
(7) im) Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) General Rule 21 OFRCP41(a)\(1) CO FRCP41(a)(2).
do) =f {Other docket entry) ENTER MEMORANDUM OPINION: Defendants’ motion (Doc 23-1)
for summary judgment is granted. All other pending motions are moot.
(11) ff [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices required. vumbe ototes Number
Notices mailed by judge’s staff.
No ; HAY 1 5 2002
ified counsel by telephone. date doce
wv | Docketing to mail notices.
Y | Mail AO 430 form. \y sn ASAT Yas
Copy to jugyfYmagistrate judge.
‘\\ HE? stead ice
courtroom
scT deputy’s ,
initials —!
Date/time received in
central Clerk’s Office ailing deputy intiaks



render his workplace tense and tumultuous. There is also no indication that either
Deubel or Oliver did not cooperate with investigators assigned to their cases. Although
Little of course disputes that he was uncooperative, the fact that the allegation was
leveled against him makes his situation and the range of possible outcomes very
different from what Deubel and Oliver confronted. We conclude that Little has not
been able to produce a similarly situated employee who received more favorable
treatment than he, and this inability is fatal to his Title VII claims. See, e.g., Hilt-Dyson
v. City of Chicago, 282 F.3d 456, 465 (7th Cir. 2002) (retaliation); Lalvani v. Cook
County, 269 F.3d 785, 789 (7th Cir. 2001) (discrimination).

Even if Little were able to identify a similarly situated employee, he would still
have to face the question of the sufficiency of his work performance. Whether Little
was meeting the legitimate expectations ofhis employer for the purposes of establishing
his prima facie case is debatable. The conflicting stories and evidence that have been
presented as to what actually happened between Little and Kickels and during the IAD
interviews preclude us from deciding as a matter of law that Little was not adequately
performing his assigned duties. Whether the Board and the Department honestly
believed that Little engaged in the behavior detailed in the IAD report is a separate
issue, one that is amenable to resolution on summary judgment even if the plaintiff can

arguably make it past the element of adequate job performance. Vakharia v. Swedish

-ll-


77\ (7th Cir. 1994), Finally, Little looks to the treatment of Oliver and Deubel. Both
employees engaged in serious misconduct: Deubel for using his position to improperly
obtain and distribute criminal history information and Oliver of receiving pay from two
different state agencies for the same hours of work. At first blush, Deubel’s situation
bears some resemblance to Little’s; both were charged with using their authority for
improper purposes. Closer inspection, however, reveals two crucial differences. First,
Little was charged with misusing his position to intimidate and harass other employees.
Such abuse of authority disrupts the working environment and affects the performance
of other employees, a consequence that would not necessarily result from behavior like
Deubel’s. Moreover, the ultimate decision on what punishment each employee would
receive came from two completely separate sources (Bower, the Department’s Director,
for Little, and the ISP Merit Board for Deubel), indicating that in addition to not
engaging in the same conduct, Little and Deubel did not have the same supervisors. See
Radue, 219 F.3d at 618. Without the same decisionmakers, the two disciplinary
decisions are not comparable. Finally, Little offers Oliver for the purpose of showing
retaliation. We are unpersuaded that Oliver was in fact similarly situated, since the
differences between the situations of Little and Oliver extend beyond the fact that
Oliver did not file charges with the EEOC or complain to the powers that be of alleged

discriminatory practices. Like Deubel, Oliver did not engage in conduct that would

-10-


Counts I and II of the complaint allege that the Department and the Board took
disciplinary action for complaints Little had made about discriminatory practices to the
EEOC and state government officials and that the discipline Little received was harsher
because of his race. He also claims that the Board duped him into requesting the July
1999 transfer to the Empress for the same reasons.

Little has offered no direct evidence of retaliation or race discrimination, so he
must rely on the applicable formulations of the McDonnell Douglas burden-shifting
analysis to establish indirect evidence of unlawful activity. Lesch v. Crown Cork &
Seal Co., 282 F.3d 467, 472 (7th Cir. 2002). To prevent the Department and the Board
from obtaining summary judgment on his claim of retaliation, Little must show that
after he lodged his complaints, only he, and not any other similarly situated employee

who did not file a charge, was brought up on charges and suspended even though he

was performing his job satisfactorily. Stone v. City of Indianapolis Public Utilities
Div., 281 F.3d 640, 644 (7th Cir. 2002). To prevail on his claim of race discrimination,
Little must satisfy four elements: (1) he belongs to a protected class, (2) he performed
his job in accordance with his employer’s legitimate expectations, (3) he suffered an
adverse employment action, and (4) similarly situated employees not in the same
protected class received more favorable treatment. Curry v. Menard, Inc., 270 F.3d

473, 477 (7th Cir. 2001). If Little shows that his situation meets both sets of criteria,

-7-


about Sheard and the other hostesses not liking Kickels or his method of management.
Based on Dwyer’s statements and other findings made during the investigation, the IAD
determined that the allegations against Little were substantiated by a preponderance of
credible evidence.

Little recounts the story differently. He claims that the conversation regarding
the hostesses never happened. Rather, he claims the July 1 meeting stemmed from an
encounter with Kickels outside the Empress in late May 2000. According to Little, he
overheard Kickels make a racist statement about his subordinates. Little says he
immediately approached Kickels about the comment, informing him that he would
report him to the IGB if he ever heard him make such a comment again. As to the
content of the meeting on July 1, Little says that Kickels requested the meeting to
apologize to Little and explain that he was not a racist. Little goes on to dispute most
of the facts listed in the IAD report and insists that the investigators acted improperly
during their interviews of him. While the investigation proceeded, Little filed two
charges with the EEOC, one against the Board on July 27, 2000, and one against the
Department on August 9, 2000. He also began a letter-writing campaign to inform state
government officials and high-ranking Department officials of his perception of the

investigation and the motivations he believed were driving it.


pretext, and the Board and the Department are entitled to summary judgment ofhis Title
Vil claims.
Section 1983 Claims

Counts If and IV of the complaint allege that Bower and Haughey are liable to
Little under 42 U.S.C. § 1983 for violating Little’s constitutional rights. In response,
both defendants have asserted the defense of qualified immunity. Public officials are
entitled to qualified immunity from suit under 42 U.S.C. § 1983 unless the plaintiff can
show that the official violated the plaintiff's constitutional rights and the legal standards
that pertained to the constitutional injury were clearly established at the time the
violation allegedly occurred. Myers v. Hasara, 226 F.3d 821, 828 (7th Cir. 2000). The
parties focus much of their attention on whether the clarity of the law with regard to
First Amendment activity, but before we can reach those issues, we must consider
whether Little has showna violation ofa constitutional right. Saucier v. Katz, 121 S.Ct.
2151, 2156 (2001). If the official’s actions do not rise to the level of a constitutional
injury, the inquiry is at an end and the official is immune from suit. Id, Although both
counts allude to substantive due process under the Fourteenth Amendment, the content
of the counts and Little’s arguments make it clear that his contentions rest on a theory
of retaliation for activities protected by the First Amendment. Rather than turning

substantive due process into a catchall backup for any asserted constitutional injury, the

-14-


discharge was called for. As discussed with regard to pretext, the charges contained in
the report were of sufficient gravity to independently warrant the actions Bower and
Haughey took in response, and Little’s claim therefore lacks the necessary “but for”
connection that would allow him to show a constitutional violation. Our inquiry is
therefore at an end, as Bower and Haughey are qualifiedly immune from liability for the
allegations of Counts III and IV.

CONCLUSION

Based on the foregoing analysis, the motion for summary judgment is granted.

Charles P. Kocoras
United States District Judge

Dated: May 14, 2002

-16-


In January 2000, shortly after Little went back to work at the Empress, IGB
received complaints about Little’s conduct toward Empress employees. A report
generated by the Department's Internal Affairs Division (“IAD”) concluded that Little
had conducted himself in a manner unbecoming an IDOR employee. No action was
taken against Little because of procedural defects in the disciplinary process. The
following July, Little was again the subject of allegations of misconduct. These
allegations involved interactions between Little and another Empress employee, Kevin
Kickels (“Kickels”). The parties differ on precisely what happened in these
interactions.

According to the IAD report, Little approached Kickels and asked him to
accompany Little to his office. A surveillance video camera outside Little’s door
showed the two men entering the office and exiting approximately 15 minutes later.
Kickels claimed that the conversation revolved around a purported incident that
occurred between Kickels and a hostess at the Empress named Janice Sheard
(“Sheard”). Kickels stated that he felt Little was trying to intimidate him by threatening
to go to his superiors about the matter with Sheard. A few weeks later, Kickels reported
the incident to Chris Corrado, his superior, as well as IAD inspectors. Kickels’ story
was corroborated by Allison Dwyer (“Dwyer”), who coordinated the hostesses aboard

the Empress. Dwyer reported to the IAD inspectors that Little had spoken to Kickels

-2-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GREG LITTLE, )

Plaintiff,

vs. } 00 C 7836

ILLINOIS DEPARTMENT OF
REVENUE, et al., )

Defendants. }

MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on Defendants’ motion for summary
judgment. For the reasons set forth below, the motion is granted.

BACKGROUND

Plaintiff Greg Little (“Little”) is an employee of Defendant Illinois Department
of Revenue (“the Department”). In 1994, he was assigned to work as a gaming agent
for Defendant Illinois Gaming Board (“the Board”) on the Empress Riverboat Casino
in Joliet, Illinois. Shortly after he was given this assignment, Little was discharged.
Nearly two years later, he was reinstated to a position with the IDOR pursuant to an

arbitration award. In mid 1999, Little returned to the Empress after requesting to be

Ly \

transferred there.


Covenant Hospital, 190 F.3d 799, 807 (7th Cir. 1999). When determining the sincerity
of an employer’s claim of honesty, our analysis is suffused with considerations of
reasonableness, because a belief that is objectively reasonable is more likely to be

honestly held. Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001),

quoting Flores v. Preferred Technical Group, 182 F.3d 512, 516 (7th Cir. 1999).

The IAD investigation concluded that Little had exceeded his authority and
abused his position by attempting to intimidate Kickels during the July 1 meeting.
Kickels’ version of the events of that evening was corroborated by both Allison Dwyer
and Chris Corrado. The report also stated that Little did not cooperate with IAD
investigators when asked about the content of that meeting during official interviews.
Little claims that he did in fact answer all questions put to him during the interview and
offers the testimony of Rossi and Kinsella in support. However, their recollections of
the events of the August 2, 2000, interview, particularly Kinsella’s, do not render the
report unworthy of credence. Kinsella noted that after Little was shown the tape, Oliver
asked him a question unrelated to the duration of the meeting, which Little refused to
answer. PI.’s Exh. 6, at 36. This is consistent with Oliver’s recounting, which stated
that after Little saw the tape, Oliver asked him to relate the contents of the conversation,
which Little repeatedly refused to do. Def.’s Exh. D-2, at 11-12. In addition, Kickels

reported the altercation with Little and his recollection of what was said in mid July

-12-


Supreme Court has cautioned that a claim that finds its source in specific textual
provisions of a particular amendment must be analyzed under the standards for that

amendment only. See County of Sacramento v. Lewis, 118 S.Ct. 1708, 1715 (1998).

Therefore, the component of the complaint premised on the Fourteenth Amendment is
subsumed into the First Amendment claims, which form the only predicate for Little’s

§ 1983 actions.

To show the constitutional violation alleged in this case, Little must satisfy a two-

prong test. Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 970 (7th Cir.
2001). He must show that he engaged in activities protected by the First Amendment
and that his protected activity was a “substantial or motivating factor” in his discipline
and discharge. Id. The second prong requires Little to prove that Bower and Haughey
would not have taken the challenged actions but for his complaints about alleged
discriminatory practices. Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000).
Ifthe two defendants would have followed the same path even in the absence of Little’s
speech, Little’s claim of First Amendment retaliation fails. Id. Little cannot show that
Bower and Haughey would have disciplined him differently if he had not made his
charges of discrimination and retaliation, in the face of the findings of the IAD report.
It is undisputed that Bower and Haughey had access to the report and had discussed its

contents with others involved in the investigation before they concluded that Little’s

-15-